This Petition for Review from the December 15, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard November 1, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. Both the claimant and the respondents have petitioned for review from the December 15, 1995 Finding and Award of the Commissioner acting for the Fourth District. The respondents appeal concerns the trial commissioner’s failure to disqualify herself from the instant case, as well as an alleged lack of evidence supporting her decision to award temporary total disability benefits. The claimant’s appeal merely concerns the trier’s failure to award interest and attorney’s fees. On review, we believe that error was committed, and that the commissioner’s decision must be vacated and the case remanded for a new trial.

The claimant (who does not speak English, and required an interpreter to testify) alleges that she sustained a compensable back injury on October 3, 1994 as a result of repetitive trauma that occurred while she was operating a machine at her employer’s plant. A formal hearing was held on August 23, 1995,1 at which the claimant’s attorney set forth the claimant’s claim and presented her testimony. Once the claimant had been examined to the parties’ satisfaction, her attorney rested her case.

The respondents’ attorney had not summoned any witnesses for the defense, stating that she had expected the claimant’s testimony to take up the whole afternoon. (Transcript, p. 49). Claimant’s counsel then objected that the claimant badly needed surgery, and could not pay for it. After a brief off-the-record discussion, the respondents’ attorney suggested that an advance be made to the claimant until the continuation of the proceedings. When asked how much, she stated, “I believe the commissioner’s recommendation was $6,000.” Id., 51. She stated that she would recommend an advance against the 46-week temporary total disability period.

Claimant’s counsel then requested that if the advance was not made, the record should be closed, and a decision should be rendered. The respondents acknowledged that an independent medical examination had not been held in the case, to which the claimant’s counsel responded that the insurer had negligently delayed taking action, and that he was going to seek attorney’s fees and interest against the respondents. Id., 52. The commissioner agreed that she would consider rendering a decision if the $6,000 was not paid, and said that she hoped the case would be resolved. The hearing was then adjourned. Six days later, claimant’s counsel sent the commissioner a letter stating that the respondents had rejected the $6,000 advance because they believed that they had an adequate defense to the claim. He then requested that the commissioner issue a decision in the matter as per the discussions at the formal hearing.

Instead, a second formal hearing was scheduled for November 15, 1995. There, the respondents introduced evidence challenging the causal relationship between the claimant’s work activities and her back injury. During the hearing, the commissioner stated that she wanted the record to reflect that she had not had any ex parte communications with either party, nor would she ever do so, even though the claimant’s attorney had repeatedly attempted to telephone her and was irate that she would not return his calls. (Transcript, p. 33-35). She also expressed anger at the “mischaracterization” by the respondents of the August 29, 1995 letter from claimant’s counsel as an indication that there were “monies involved.” Id., 34.

Claimant’s counsel explained in response that he had believed that the hearing would be closed if the $6,000 advance was not paid, and that he had attempted to call when another formal hearing was scheduled instead. Id., 35-37. The respondents’ attorney then stated his opinion that “at this point the record is so tainted that this case should be tried de novo and [the commissioner] should be disqualified.” Id., 39. The commissioner declined to do so, and continued the hearing. At the close of the hearing, the commissioner gave the parties thirty days to prepare briefs and proposed findings of fact. Exactly 30 days later, she issued her decision ordering the respondents to pay for surgery, medical treatment and temporary total disability benefits.

This board recently discussed the issue of recusal in Costa v. United Nuclear Corp., 2296 CRB-2-95-1 (decided Nov. 20, 1996). We cited §§ 4 and 18 of the Code of Ethics for Workers’ Compensation Commissioners, which state that a commissioner’s conduct “should be free from even the appearance of impropriety,” and that if a trial commissioner’s impartiality might reasonably be questioned, disqualification should occur. The standard is not whether the judge could actually render an impartial decision, or subjectively believes that she could do so, but whether an observer would reasonably question her neutrality under the circumstances. Dubaldo v. Dubaldo, 14 Conn. App. 645, 649-50 (1988); Costa, supra. “Just as is the case with a trial judge, a commissioner’s conduct must be characterized by the absence of bias; any departure from that standard would cast a shadow on the workers’ compensation system.” Id., citing Postemski v. Landon, 9 Conn. App. 320, 322 (1986).

In this case, our concern is the impression that the parties’ discussion of a possible settlement at the first formal hearing gives regarding the validity of further proceedings. Although the commissioner was undoubtedly sincere in thinking that she had not prejudged the case, the record shows that she approved the respondents’ suggestion that an advance be made to the claimant to help pay her bills. In fact, she appears to have recommended the $6,000 amount. She also felt the need to defend herself from allegations of bias at the next formal hearing. Compare Papa v. New Haven Federation of Teachers, 186 Conn. 725 (1982) (trial judge became so personally involved in issue at heart of case that he felt it necessary to defend himself from allegations made in newspaper article).

To a neutral observer, there would certainly be a suspicion at this point that the commissioner had already made a decision as to the merits of the case. Even if prejudgment had not occurred, it is the appearance of impropriety that a judge or a commissioner must avoid, rather than actual bias. Because the record reflects that discussions regarding a settlement were held during the formal hearing, the trial commissioner’s knowledge of this possible compromise has a tendency to taint the rest of the proceedings. Once a formal hearing starts, no predetermination regarding the compensability of an injury should be apparent unless the issue has already been conceded. The integrity of workers’ compensation proceedings should never be left open to question when disqualification of the trier could prevent such doubt from forming.

In the interest of protecting the vital image of impartiality that underlies our proceedings, we vacate the trial commissioner’s decision and remand the case to the Fourth District for a new trial before a different commissioner. No discussion of the other issues on appeal is necessary, as they are made moot by this holding.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 At oral argument, it became important in the context of the discussion to ascertain whether the hearing began in the morning or the afternoon. Although claimant’s counsel maintained that the hearing started at 9:00 A.M., the hearing notice indicates that it was scheduled for 1:00 P.M., and the commissioner began the proceedings by stating “good afternoon.” Transcript, p. 2. The parties also referred to the hearing taking “all afternoon” later in the proceedings. Id., p. 49. It thus appears that the hearing was held in the afternoon. We note that it would be helpful in the future for hearing reporters to indicate the time that a hearing begins and ends on the transcript, if they are not already in the practice of doing so. BACK TO TEXT